Should the confession of a person accused of tax crimes that was attained unlawfully be admissible?
Should the confession of a person accused of tax crimes that was attained unlawfully be admissible
?Adv. Gill Nadel, Moran Shmilovich
In 2006, the Supreme Court decision on the Issacharov case was issued, which set the important and fundamental rule that any evidence obtained in the course of an investigation may be disqualified. This happens when both of the following conditions are met: a) the evidence was in fact obtained unlawfully by the law enforcement authorities; b) admitting the evidence into the trial will significantly damage the right of the accused to a fair trial.
This is a fundamental balancing formula intended to achieve an appropriate compromise between all the rights and interests relevant to the question of the admissibility of evidence obtained unlawfully, among these interests: on one side are interests such as discovering the truth, the war against crime, protecting the public safety and the rights of the victims of the crime; on the other side are protecting the rights of the accused and the fairness and purity of the legal proceeding on the other side. This balancing formula is intended to be applied according to the discretion of the court and considering the circumstances and each case, according to criteria outlined in the judicial literature.
Recently, the Magistrate's Court in Ashdod was asked to discuss the admissibility of a statement given in the course of the interrogation of a suspect in tax-related offenses, including theft, conspiracy to commit a crime, accepting property obtained criminally, and evasion of tariff payments owed.
This case involved the trial of an accused, in the course of which the testimony of the customs investigator was collected, and in the course of which the statement of the accused before that investigator was requested to be admitted. The accused opposed the submission claiming that he had not been properly warned before the interrogation, that is, that he was not informed of his right to consult with an attorney.
The prosecutor did not dispute the fact that in the course of the interrogation of the accused, he was not informed of his right to meet with an attorney, a right existing by virtue of paragraph 32 to the Law of Criminal Procedure (Enforcement Authorities: Arrests) ("The Law of Arrests").
The court ruled that according to the language of paragraph 32 to the Law of Arrests, the law applies only to arrested parties, while the accused in this case was not arrested, but only detained. In these circumstances, according to the language of the law, there is no violation of paragraph 32 to the Law of Arrests and thus the statement was not collected unlawfully.
The accused attempted to refer the court to the precedent of Issacharov, in which the Supreme Court clarified its support for a wide interpretation of the right to consult with an attorney during interrogation and not only during the actual arrest.
The accused in this case was interrogated in the year 2000, while the Issacharov decision was given only in 2006. In light of this fact, in 2000, the law enforcement authorities acted according to the language of paragraph 32 to the Law of Arrests and did not extend its interpretation.
The court ruled that it should not be said that failure to inform the accused of his right to consult with an attorney is only a negligible or light-weight technical violation. But at the same time, in 2000, at the time that the statement of the accused was collected, the importance and centrality of the right to attorney consultation had yet to be internalized among law enforcement authorities and under the Issacharov decision it was never the practice to inform a suspect of the right to consult with an attorney.
Therefore, the court ruled that the behavior of the interrogator, who failed to inform the accused of the right to consultation, was not done intentionally or willfully, and therefore his behavior in this context was normative at that time. The court ruled that this face is considered a mitigating circumstance for the violation of the duty to inform and the infringement upon the fairness of the criminal proceeding.
The court added that if the statement is not sufficient to lead to the conviction of the accused- in any case its admissibility is not important, but if it does have the ability to lead to a conviction, and its disqualification may lead to a criminal getting off without any punishment- this may have a significant and harsh effect of the public morality and the trust that it places in the legal system. Therefore, the court ruled that the statement should not be prevented from being admitted as evidence.
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